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Déjà vu? Investment Court Proposals from 1960 and Today

Published on May 15, 2018        Author:  and

It is not business as usual in investment dispute resolution these days. In late April 2018 in New York, governments and experts met under the auspices of UNCITRAL Working Group IIIto continue vigorously debating how investor-state dispute settlement (ISDS) should be reformed or replacedby an investment court. This is not the first investment court proposal, however.

In the 1950s and 1960s, eminent international lawyers from around the world — Martin Domke, George Haight, F A Mann, Gunnar Lagergren, Elihu Lauterpacht, Raisa Khalfina, and Ignaz Seidl-Hohenveldern, to name a few — discussed an international investment court, notably at International Law Association conferences in 1958, 1960, and 1962. In 1960, ILA participants compared a court and arbitration directly, discussing “Draft Statutes of the Arbitral Tribunal for Foreign Investment” and “Draft Statutes of the Foreign Investments Court.”

Views in 1960, like today, varied sharply. No expert consensus existed that arbitration was better than a court for resolving investor-state disputes. This lack of consensus echoed even earlier debates: in 1905, when ASIL was founded, it was directed “exclusively to the interests of international law as distinct from international arbitration” (as Mark Mazower notes, page 92) because arbitration involved a compromise between interests rather than fidelity to the law. For ASIL founder Elihu Root, arbitration was an advance toward peace, but “the next advance to be urged along this line is to pass on from an arbitral tribunal…to a permanent court composed of judges who devote their entire time to the performance of judicial duties.” (Root might smile if he could see European officials coming to ASIL to discuss why an investment court should replace arbitration.) Unlike ASIL’s founders, arbitration’s supporters in 1905 praised the modesty of its procedures and goals—it was imperfect but feasible.

Feasibility was emphasized again in the 1960s, by attendees at the 1960 ILA conference and at the ICSID Convention’s drafting a few years later. This perception of feasibility stemmed in large part from assumptions made about arbitration in the 1960s, including that arbitral tribunals would not be agents of legal development, that appointing arbitrators was simple, and that arbitration was low cost. One can no longer make these assumptions about investor-state arbitration.

Today, reforming arbitration and creating a court are not mutually exclusive, nor are they only options under consideration at UNCITRAL. They are “elephants in the room” at UNCITRAL, however, so it’s interesting to compare how these two dispute resolution mechanisms look to participants today with how they looked in 1960. In this post, we cover three issues: legal development, appointments, and costs. Read the rest of this entry…

 

High Risk, High Reward: Taking the Question of Italy’s Involvement in Libyan ‘Pullback’ Policies to the European Court of Human Rights

Published on May 14, 2018        Author: 

The mere filing of a case is rarely a reason for legal commentary but in this particular case, it may well be. A few days ago, a broad-based coalition consisting of NGOs and scholars, led by the Global Legal Action Network (GLAN) filed an application against Italy before the ECtHR with potentially far-reaching implications for European migration policy and especially maritime border control. The issues at hand are so-called ‘pullback’ practices in which the Libyan coastguard – funded, trained, and equipped by the Italian authorities under an agreement signed in February 2017 – prevents migrant boats from heading to Europe’s safe shores.

The application concerns events that unfolded the morning of 6 November 2017. A migrant dinghy in distress before the Libyan coast was simultaneously intercepted by the Libyan coastguard and a rescue ship of the German NGO ‘Seawatch’. A messy and partly confrontational rescue process ensued. Of the (approx.) 120 migrants onboard the dinghy, more than 20 persons drowned before and during the operation. 47 others were ‘pulled back’ by the Libyan coastguard, allegedly experiencing human rights violations including torture and inhumane and degrading treatment upon their return in Libya. 59, more lucky individuals, were rescued by the Seawatch and brought to Italy. By merely looking at the facts, the advantages of having a broad-based coalition become clear. University of London Goldsmiths’ Forensic Architecture agency made available an impressive digital reconstruction of the events that unfolded that morning. These details could be a crucial ingredient for a successful case.

Still, the present case comes at a difficult time for migrant rights advocates in Europe. Read the rest of this entry…

 
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The Missing Link in Migration Governance: An Advisory Opinion by the International Court of Justice

Published on May 11, 2018        Author: 

Even though the International Court of Justice (ICJ) has jurisdiction to resolve disputes on the interpretation and application of the 1951 Refugee Convention (Art. 38) and the 1967 Protocol (Art. IV), it has so far not adopted any relevant judgment or advisory opinion. States have not shown interest in activating the Court’s jurisdiction with regard to the Refugee Convention, but they have done so in a variety of disputes broadly linked to transboundary movement of persons or to international protection: Latin American diplomatic asylum (Asylum and Haya de la Torre cases), consular assistance (LaGrand  and Avena cases), and extradition, arrest  or surrender of persons suspected of war crimes and crimes against humanity (Arrest Warrant and Habré cases), and terrorism (Lockerbie case).

As the world currently faces the worst migration crisis since WW II in terms of destabilization potential, due to the combined effects of the wars in Libya and Syria, and poverty in the Sahel, it is time to consider the challenges and benefits of the potential involvement of the ICJ in the global efforts of migration management and international protection. There are three questions to discuss, (a) necessity, (b) feasibility and (c) contribution of a potential ICJ ruling.

Read the rest of this entry…

 

New EJIL: Live! Interview with Jürgen Kurtz on his Article “Convergence and Divergence in International Economic Law and Politics”

Published on May 10, 2018        Author: 

In this episode of EJIL: Live! the Editor-in-Chief of the Journal, Professor Joseph Weiler, speaks with Jürgen Kurtz, Professor of International Economic Law at the European University Institute, whose article “Convergence and Divergence in International Economic Law and Politics”, co-authored with Sungjoon Cho, Professor of Law at the Chicago-Kent College of Law, Illinois Institute of Technology, appears in issue 1 of volume 29 of the Journal.

The conversation takes up and deepens the issues explored in the article, noting in conclusion that the article’s very serious engagement on a doctrinal and policy level has ramifications which transcend the specific issue. The interview was recorded at the European University Institute.

 
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Crimea Investment Disputes: are jurisdictional hurdles being overcome too easily?

Published on May 9, 2018        Author: 

In February-March 2014, Crimea experienced what is here neutrally referred to as a ‘change of effective sovereign’ (as conceded by Ukraine itself). Subsequent events have given rise to at least nine investment claims by Ukrainian nationals against Russia in connection with their investments in Crimea made prior to the ‘change of effective sovereign’. Substantively, all cases pivot on alleged violations of the expropriation and FET (fair & equitable treatment) clauses of the 1998 Russia-Ukraine BIT. Before getting there, however, a series of jurisdictional hurdles need to be overcome. Firstly, whether the scope of the BIT covers also de facto (as opposed to de jure) territory. Thus, whether under the BIT, Crimea may be understood as Russian territory. Secondly, the BIT’s temporal and personal ambit of application. That is to say, whether Ukrainian nationals and their businesses existing in Crimea prior to the ‘change of effective sovereign’ may qualify, respectively, as foreign Ukrainian investors and investments in Russia. It is doubtful that these questions which, are inevitably intertwined with the public international issue of the legality of the ‘change of sovereign’, can be satisfactorily answered through ‘effective interpretations’ and/or drawing analogies from human rights law. The scope and rationale of investment law differs from that of the latter; the promotion and protection of bilateral business is pursued for the benefit of economic growth, while the protection of fundamental rights and freedoms of persons is undertaken for the good of human kind.  In fact, it is reflected in the standard dispute settlement mechanism envisaged i.e. private ad hoc arbitration v standing international court.

Jurisdictional decisions in five proceedings have recently been rendered. To date, none of these have been made public. Nevertheless, important passages of their reasoning have been uncovered by trusted sources. These allow for a preliminary review of the tribunals’ assessment of the key legal issues involved. Read the rest of this entry…

 

Achmea: The Fate and Future of Intra-EU Investment Treaty Awards under the New York Convention

Published on May 8, 2018        Author: 

On March 6, 2018, the CJEU rendered its judgment in the long-awaited Slovak Republic v. Achmea case (Case C-284/16). This case involved a preliminary reference from the German Bundesgerichtshof in the context of setting aside proceedings initiated by Slovakia against a 2012 award, which was rendered by an investment tribunal in accordance with the UNCITRAL Rules under the BIT between the Kingdom of Netherlands and Czech and Slovak Federative Republic, in force since 1992. Based on its analysis of certain provisions of the EU Treaties (TEU and TFEU), the CJEU ruled that an Investor-State Dispute Settlement (“ISDS”) provision in an intra-EU is not valid under EU law.

Thus far, the academic discussion surrounding the case has focused on the fate and future of Intra-EU BITs (see here and here) but has not ventured into the consequences of the decision for the arbitral awards rendered under these BITs. Since the Achmea decision forms part of EU law and is binding on the national courts of all EU Member States, it reasonably follows that national courts within the EU must now refuse to recognize and enforce non-ICSID awards based on ISDS provisions in intra-EU BITs. However, under Article III of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958) (“New York Convention”), national courts within the EU also have an obligation to recognize and enforce arbitral awards except where one or more of the seven grounds under Article V apply. This piece utilizes this legal conflict that courts within the EU now face as its starting point and explores the practical implications of the Achmea decision through the lens of Article V of the Convention, focusing on two grounds in particular: violation of public policy and invalidity of the arbitration agreement. Read the rest of this entry…

 
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New Issue of EJIL (Vol. 29 (2018) No. 1) Published

Published on May 8, 2018        Author: 

The latest issue of the European Journal of International Law (Vol. 29, No. 1) is out today. As usual, the table of contents of the new issue is available at EJIL’s own website, where readers can access those articles that are freely available without subscription. The free access articles in this issue are Jochen von Bernstorff, Violence and International Law before 1914: On Imperial Ordering and the Ontology of the Nation State, and Eyal Benvenisti, Upholding Democracy amid the Challenges of New Technology: What Role for the Law of Global Governance? EJIL subscribers have full access to the latest issue of the journal at EJIL’s Oxford University Press site. Apart from articles published in the last 12 months, EJIL articles are freely available on the EJIL website.

 
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A Court that Dare Not Speak its Name: Human Rights at the Court of Justice

Published on May 7, 2018        Author: 

Editor’s Comment: The adequacy of the ECJ jurisprudence in the area of human rights has been the subject of extensive critical comment in recent times, not least since its much commented upon decision in Opinion 2/13. I have invited one of the most authoritative, knowledgeable and sober voices in the EU law interpretative community, Daniel Sarmiento to contribute a Guest Editorial on this topic. We are honoured to publish it in this issue. 

‘We are not a human rights court.’ This phrase has been repeated over and again by judges and advocates general of the Court of Justice of the EU for many years. To the question of why does the Court not rely more on Strasbourg case law on human rights in the field of, say, competition, the reply was a classic: ‘we are not a human rights court’. If the Court was accused of ignoring international human rights instruments in cases with a strong tie with international law, the response sounded familiar: ‘we are not a human rights court’. If human rights were put aside or restricted in the name of free movement rules, the explanation was always ready to go: ‘we are not a human rights court’.

Indeed, the Court of Justice was not designed in its early days to be a human rights court, but its current role as the lead player of the European judicial landscape has put it in an unprecedented situation. There is no area of policy that escapes the scrutiny of the Court of Justice: the digital world has found in the Court an uncompromising upholder of private life that will not tolerate intrusions in the sphere of individuals’ privacy; the effectiveness of asylum policy depends on the Court’s readiness to interpret asylum rules as procedural or substantial guarantees in light of human rights; consumers throughout the continent rely on the Court’s judgments to rule on how banks, digital titans or retailers treat their clients; criminal procedures have come under the umbrella of EU harmonization instruments, putting the Court in a privileged position to set standards and guarantees of criminal procedure in all Member States.

These are only a few examples of how the Court has been transformed from a modest international jurisdiction into a supranational hegemon, whose decisions have a direct and significant impact on the rights and lives of millions of Europeans. Read the rest of this entry…

Filed under: Editorials, EJIL
 

Announcements: CfP International Law Weekend 2018; CfS Melbourne Journal of International Law; UN Audiovisual Library of International Law

Published on May 6, 2018        Author: 

1. Call for Proposals: International Law Weekend 2018. Under the unifying theme “Why International Law Matters”, the American Branch of the International Law Association (ABILA) and the International Law Students Organization (ILSA) are inviting proposals for International Law Weekend 2018, which will be held from 18 – 20 October 2018 in New York. More information and the call for proposals can be found here.

2. Call for Submissions: Melbourne Journal of International Law. The Editors of the Melbourne Journal of International Law (‘MJIL’) are now inviting submissions for volume 19(2). The deadline for submissions is 1 July 2018. MJIL is a peer-reviewed academic journal based at the University of Melbourne which publishes innovative scholarly research and critical examination of issues in international law. Submissions and inquiries should be directed to law-mjil {at} unimelb.edu(.)au. For more information please see here

3. New Additions to the UN Audiovisual Library of International Law. On the occasion of International Labour Day, the Codification Division of the UN Office of Legal Affairs has added the following lectures to the UN Audiovisual Library of International Law website: Mr. Dražen Petrović, Registrar of the Administrative Tribunal of the International Labour Organization, on “The Administrative Tribunal of the International Labour Organization” and Ms. Tomi Kohiyama, Deputy Legal Adviser of the International Labour Organization, on “La dynamique de l’action normative de l’Organisation internationale du Travail : sa politique normative”. The UN Audiovisual Library of International Law provides high quality international law training and research materials to users around the world free of charge.

Filed under: Announcements and Events
 
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Vital Statistics; Time for Change – With Thanks to Guy Fiti Sinclair

Published on May 6, 2018        Author: 

Vital Statistics

Each year we publish statistics on the state of our submissions: where submissions originated, which were accepted, and which were published in EJIL during the previous 12 months. We do this to observe and understand any changes that may be taking place in submission and publication patterns in our Journal and to keep our authors and readers informed of such.

The final selection of articles published in EJIL is determined by two principal considerations: quality is, naturally, one of these. All published articles go through our double-blind peer review process. We do not put the finger on the scale when it comes to national or geographic origin of the article, gender and other such factors. We look for excellence: articles we hope will be read, recalled, referred to and cited in years to come.

The second consideration is curatorial. EJIL is not a mere refereeing service. We publish between 40-60 articles per year. We receive anywhere between 5-10 articles per week. We receive many more excellent articles that are worthy of publication than we are able to publish, given considerations of space. Choices have to be made. Our curatorial decisions aim to produce issues of interest to a wide variety of readers, covering different areas of international law, different approaches to scholarship, and the like. EJIL Talk! is an integral part of EJIL and its coverage is part of the mix we consider. Thus, in the initial screening by the editorial office we may reject articles simply because we have published recently on the topic, or there might be something in the pipeline and other similar considerations. We also engage in some ‘agenda setting’ by initiating debates and from time to time commissioning symposia generated by our own Boards or accepting symposia proposed by others. Finding the right balance is always a delicate curatorial decision and the figures are fluid. In recent years we have privileged unsolicited articles, given the growing number and quality of submissions. In 2017 we published fewer commissioned symposia in our four issues than in previous years: unsolicited manuscripts accounted for 76 per cent of our published pages, whereas in previous years it had been around 65 per cent. Read the rest of this entry…

Filed under: Editorials, EJIL
 
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